COLUMNS

Striking the balance: Meeting the needs of law enforcement
while protecting personal freedom
By Senator John Sununu

On July 29, the Senate quietly passed legislation to renew the expiring provisions of the USA PATRIOT Act by a voice vote. Throughout the past three years, I have been firm in my support of changes to the PATRIOT Act that I felt would achieve a better balance between the needs of law enforcement and the need to protect the civil liberties of law abiding Americans. Given the criticism this had brought from some in my own party (notably Ed Meese and Paul Rosenzweig III), it is especially gratifying to note that almost all of the changes I sought were approved in the final unanimous Senate vote.

The events of 9/11 and the need to enhance law enforcement’s ability to pursue terrorists drove the passage of the PATRIOT Act in 2001, which I supported as a Member of the House of Representatives. As a Senator, I have worked with colleagues on both sides of the aisle to ensure that even as we address the threat of violent extremism, we do so without eroding civil liberties. In this effort, I joined with Senate Judiciary Committee members Larry Craig (R-ID), Dick Durbin (D-IL) and Russ Feingold (D-WI) to craft and introduce the “Security and Freedom Enhancement Act,” known as the SAFE Act (S. 737). This legislation sets forth limited, common sense changes to the original PATRIOT Act to better safeguard privacy and civil liberties without impeding our ability to prevent terrorism.

Most important, the SAFE Act provided the framework for compromise legislation to reauthorize the PATRIOT Act, introduced by Judiciary Committee Chairman Arlen Specter (R-PA) and Committee member Dianne Feinstein (D-CA). The Specter-Feinstein measure unanimously passed the Senate Judiciary Committee on July 21 before passing the Senate last week. The bill makes great progress toward achieving the four main goals of the SAFE Act, maintains our ability to confront terrorism, and better protects personal freedoms.

First, Specter-Feinstein clarifies the limits of delayed notification search warrants, known as “sneak-and-peek” warrants. Should there be a threat to safety, risk of flight, or a risk to an investigation, the bill allows a judge to extend the notification period in increments of ninety days. This approach — specifying a time limit on the warrant and providing for more judicial review — is both clearer and more respectful of civil liberties.

Second, Specter-Feinstein clarifies the provision in the PATRIOT Act dealing with roving wiretaps. Specter-Feinstein retains the PATRIOT Act provision allowing roving wire taps, which require law enforcement to specify either the person or the place to be put under surveillance. However, it would eliminate so-called “John Doe” roving wire taps, which do not require law enforcement to identify a person or location to be monitored. Changing the PATRIOT Act to require such specification would add further clarity, ensure that the PATRIOT Act is not misused, and minimize the likelihood that innocent parties would be unknowingly monitored.

Third, Specter-Feinstein would allow those whose personal or business records, including library records, are sought in connection with a terrorist investigation to challenge the order, and requires law enforcement to meet a more appropriate standard of relevance before a judge prior to such an order being issued.

Finally, Specter-Feinstein increases public reporting on the use of the most controversial provisions of the PATRIOT Act so that Congress and the public can know that the civil liberties of law abiding citizens are being fully protected, and that Congress can more effectively provide oversight of law enforcement’s needs.

In the fall, House and Senate negotiators will meet to produce a final PATRIOT Act reauthorization bill. For now, however, the reforms of the SAFE Act incorporated in the Specter-Feinstein bill show that we can maintain law enforcement’s ability to fight terrorists, while protecting civil liberties. In the end, the broad bipartisan support for these changes demonstrates that standing firm on principle is both good policy and good politics.